Karnataka High Court
Union Of India vs Taj S/O Bail Basha on 8 August, 2019
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF AUGUST, 2019
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
CRIMINAL APPEAL NO.174/2011
BETWEEN:
UNION OF INDIA
BY SUB-INSPECTOR/RPF/KJM
BANGALORE CITY ...APPELLANT
(BY SRI K.P.YOGANNA, HCGP)
AND:
1. TAJ
S/O. BAIL BASHA
AGED ABOUT 20 YEARS
R/AT NO.348, 2ND CROSS
DARGAH MOHALLA
DOORAVANINAGAR
K.R.PURAM, BENGALURU
2. YASIN SHARIEF
S/O. NOORULLAH SHARIEF
AGED ABOUT 20 YEARS
R/AT NO.368, 5TH CROSS
VARTHUR, AADHURANAGAR
BENGALURU
3. NAZEER
S/O. ABDUL RAHIM
AGED ABOUT 27 YEARS
R/AT HOODI VILLAGE
MAHADEVAPURA POST
BANGALORE ...RESPONDENTS
(BY SRI G.DESU REDDY, ADVOCATE FOR R1 & R2;
R3 SERVED & UNREPRESENTED)
2
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) &
(3) OF CR.P.C PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
ORDER DATED 05.01.2010 PASSED BY THE SPECIAL COURT FOR
ECONOMIC OFFENCES, BANGALORE ACQUITTING THE ACCUSED
RESPONDENTS FOR THE OFFENCE PUNISHABLE UNDER SECTION
3(a) OF THE RP(UP) ACT, 1966 IN C.C.NO.958/2000 ETC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the State calling in question the judgment of acquittal passed by the Special Court for Economic Offences, Bangalore in C.C.No.958/2000 dated 05.01.2010 for the offence punishable under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966.
2. Facts of the case as divulged from the material on record are that:
(i) Railway police have lodged the complaint stating that on 15.06.2000 at about 2.15 p.m. at Krishnarajapuram White Field road, opposite Christ School, near L.C.Gate, Hoodi village, Bangalore, accused 3 Nos.1 and 2 were found transporting the railway properties i.e. (i) 7 Nos. of BG Brake Blocks (ii) 4 Nos. of ACB Plates with marks (iii) One fan cover (iv) 6 Broken pieces of CST-9 sleepers (v) One used BG Brake Block without mark (vi) 2 Broken pieces of BG Brake block (vii) 2 Nos. of fish plates with bolts and nuts (viii) One screw spike (ix) 2 Nos. of Dog spikes (x) One round spike (xi) 3 Nos. of pendorl clips (xii) One door handle (xiii) 3 Nos.
of shackle plates (xiv) One hanger pin (xv) One shackle pin stone. It is stated that the said properties were being transported in a tempo bearing registration No.KA-03-5699 which are reasonably suspected of having being stolen or being in unlawful possession of accused Nos.1 and 2.
(ii) It is also the case of the prosecution that on the same day at about 5.10 p.m. to 5.30 p.m., railway police have conducted raid in the shop of accused No.3 situated at Hoodi White Field Road, Mahadevapura, 4 Bangalore and they found in possession of 2 nos. of BG Brake Blocks, 2 Nos. of ACB Plates. It is contended that the above said properties were the railway properties and they were found to be in unlawful possession of accused No.3. Therefore, the complaint was lodged alleging offence under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966.
3. Cognizance was taken. Accused were secured and produced before the Court. In order to prove the case against the accused, the prosecution examined as many as 13 witnesses and got marked Exs.P1 to P28 documents. Material Objects MOs.1 to 13 were also got marked. However, accused did not choose to lead any evidence inspite of they being examined under Section 313 of Code of Criminal Procedure, 1973.
4. After appreciating the oral and documentary evidence on record, the trial Court has come to the 5 conclusion that it is a doubtful case and the prosecution has not proved the case beyond any reasonable doubt. Therefore, recorded the judgment of acquittal. Against the said order of acquittal, the State has preferred this appeal.
5. I have heard learned High Court Government Pleader for the appellant-State and also the learned Counsel for respondent Nos.1 & 2. I have carefully perused the judgment of the trial Court as well as the evidence adduced by the prosecution. On overall analysis and re-appreciation of the oral and documentary evidence on record, the points that would arise for consideration of this Court are:
(i) Whether the trial Court has committed any serious error either in law or in the facts and circumstances of case in acquitting the accused persons for the offence punishable under Section 6 3(a) of the Railway Property (Unlawful Possession) Act, 1966?
(ii) What order?
6. In order to arrive at the conclusion to answer the above points, it is just and necessary to have brief factual matrix of the case on the basis of evidence on record.
7. It is PW.1 who is the star witness to the prosecution who speaks about seizure of the said vehicle as well as articles which are marked before Court and also some of the other articles which were not placed for consideration of the Court, also raided the shop of accused No.3 and also seizure of two articles from the shop of accused No.3. Other witnesses mainly concentrated with regard to examination of the articles seized and giving opinions and certificates stating that some of the properties seized are railway properties, 7 some of the properties are scrap properties and some of the properties does not bear any mark of the railway department.
8. I do not want to deal in detail with regard to those certificates as it is unnecessary for the purpose of consideration of the appeal. The Court has to examine whether seizure of the above said articles and seizure of the vehicle have been proved to the satisfaction of the Court and further whether the prosecution has placed any material to show that these articles were actually lost by the railway department and they bear any railway marks.
9. In this context, it is worth to refer to the evidence of PW.1. PW.1 in fact has stated that on 15.06.2000 at about 14.15 hours he along with staff intercepted the vehicle i.e. tempo bearing registration No.KA-03-5699 which was proceeding from K.R.Puram to Hoodi side. On verification, they found some railway 8 properties in tempo mixed with other scrap material. It is further stated that they segregated the railway properties and they found the railway properties as mentioned in the complaint. It is stated that accused Nos.1 and 2 were found in the said vehicle and accused No.2 was driver of the said tempo. It is further stated by PW.1 that they were not having any document to possess the railway properties and they did not give any explanation with regard to possession of the railway properties with them.
10. It is further stated that, PW.1 seized railway properties along with tempo and recorded the voluntary statement of accused Nos.1 and 2. On the same day, they searched the shop of accused No.1 and prepared search list as per Ex.P4 and recorded the further statement of accused No.1. They visited the shop of accused No.3 also on the same day and drew up mahazar Ex.P7 and seized two articles (i) 2 Nos. of BG Brake blocks and (ii) 2 Nos. of ACB plates as noted above from 9 the shop of accused No.3. But in the course of cross- examination, it is admitted by PW.1 that he had enquired accused No.1 and in turn he told that, he has also stored some properties in his shop. They went to the shop of accused No.1 and did not find any article belonged to the railways and drew up mahazar. It is admitted that, in the shop of accused No.3, they found two articles which were seized under a mahazar Ex.P7. They have also recorded the voluntary statement of accused Nos.1 to 3. But it is admitted in the course of cross-examination that seized B.G.Brake blocks were not bearing any railway marks, but only some of the ACB Plates were bearing railway marks. It is also admitted that the fan seized also did not contain railway mark.
11. It is also contended that there are 6 Nos. of broken CST-9 Plates & 2 broken pieces of B.G.Brake Blocks, 2 Nos. of Fish Plates, 1 Spike Screw, 2 Dog Spikes, 1 Round Spike, 3 Pendrol Clips, 1 door handle, 3 10 Shackle Plates, 1 Hanger pin & 1 shackle Pin stone which were not bearing railway marks. Therefore, from the evidence of this witness, it is clear that some of the articles which were alleged to have been seized do not bear railway marks.
12. In this background, the evidence of other witnesses who have given certificate as such with regard to seized properties also play some role.
13. PW.3 Mr.M.Ramakrishnappa has stated in the course of cross-examination that some of the properties were having railway marks and he compared those marks with the one noted in the special report and some of the properties were having I.D. slips and some were not. He further stated that he has issued Ex.P11 certificate for having examined (i) 9 Nos. of BG Brake Blocks, (ii) 3 Nos. of BG Shackle Plates (iii) 1 No. of hanger pin (iv) 1 No. of Shackle Stone and (v) 3 Nos. of BG Brake blocks. 11 Again in the course of cross-examination, he admitted that he had not collected any sketch and diagrams regarding specification of the properties. It is suggested that without examining-testing the properties, he gave a false certificate. It is also admitted that, item Nos.5 and 6, he examined were not serviceable and virtually amounts to scrap. Therefore, if they became scarp, how Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 is applicable is not properly explained by the Public Prosecutor. Further, how PW.3 could issue any certificate as per Ex.P11, when it is specifically admitted by him that he did not compare the seized articles with the sketch or diagrams of the railway department, but confirmed himself that those documents were railway properties.
14. Another witness PW.5 also stated that, he has given certificate as per Ex.P13. He examined 6 Nos. of ACB Plates, 6 Nos. of broken pieces of CST-9 sleepers, 2 12 Nos. of Fish bolts with nuts, 1 Screw spike, 2 Nos. of dog spike, 1 No. of round spike and 3 Nos. of pendrol clips stating that, those properties belonged to railways and issued certificate as per Ex.P13. But in the course of cross-examination, he again admitted that all the properties were not brought available for his examination and also stated that, some of the properties were serviceable and some of the properties were scrap. He stated that, out of the properties seized only few properties as stated by him were sent for examination. Therefore, it creates a serious doubt as to why other properties were not sent for examination.
15. PW.8 has also given certificate as per Ex.P11, wherein he examined 9 Nos. of BG Brake Blocks, 3 Nos. of BG Shackle plates, 1 No. of Hanger Pin, 1 No. of shackle stone, 2 Nos. of broken IRS BG Brake blocks, 1 No. of used Loco BG Brake block and issued certificate as per Ex.P11 stating that those properties belong to 13 railways. But in the course of cross-examination, again he has also admitted that, he has pasted I.D. slips containing his signature on the properties. He has stated that all the properties were not sent to him, though he has examined MO.1 is 1 out of 9 brake blocks, MO.5 is 1 used BG Brake block, MO.6 is 1 broken pieces of brake block, MO.12 is 1 Shackle plate out of 3 examined by him. So it clearly goes to show that before the Court only some of the properties were produced and all the properties examined by this witness have not been produced.
16. Likewise other witnesses have also not specifically stated as to whether those properties were specifically belong to railway properties. However, as noted above, they have stated that, some of the properties were scrap and some of the properties does not bear railway marks. So this creates a serious doubt as to whether seizure conducted by PW.1 seizing as many 14 number of properties and producing only some of the properties before the Court.
17. In this background, the Court has to examine whether seizure has been proved to the satisfaction of the Court.
18. To examine this aspect, it is only the evidence of PW.1 which is available before Court. The pancha witnesses to Ex.P1 seizure mahazar have not been examined before Court. It appears that no effort has been made to secure the presence of those witnesses before Court and to examine them. Therefore, it is suggested to PW.1 that no such mahazar has been drawn and the said mahazar witnesses are regular pancha witnesses to the railway police and therefore, their signatures have been obtained even before conducting or drawing up the mahazar of the incident or seizure. Infact, in the cross-examination, PW.1 even has gone to the 15 extent of saying that he has detained accused persons by the side of main road at a particular place. But he has not stated atleast what are the boundaries of the said place. Therefore, in the absence of examination of pancha witnesses to the mahazar, the sole testimony of PW.1 is not acceptable in view of the above doubtful circumstances. As rightly, the trial Court has not accepted the evidence of this witness to the seizure mahazar under which the properties alleged to have been seized.
19. Apart from the above, as rightly contended by learned Counsel for respondent Nos.1 and 2, properties which are shown to have been seized from the shop of accused No.3 have not been produced before Court for marking. Learned High Court Government Pleader contends that, the mahazar contain those properties which were seized from the custody of accused. Neither those properties are produced before Court at any point in time to say that they were taken back from the 16 competent authority with permission of the learned Magistrate to produce them at the time of trial nor those properties were produced and marked proving that, those properties alleged to have been seized under a mahazar. They were not at all even shown to the satisfaction of the Court to establish that those properties were actually seized. Thus, seizure mahazar alone would not help the case of the prosecution, unless the same is legally proved.
20. Apart from the above, it is a clear case of the prosecution that the said properties were seized from a tempo bearing registration No.KA-03-5699. Owner of the said vehicle has not been examined before the Court to show that when actually the said vehicle was handed over to the custody of accused Nos.1 and 2. Mere presence of accused Nos.1 and 2 in the vehicle or near the vehicle, does not amount to state that they were in conscious possession and they were knowing that the properties 17 belong to railways and the properties were known to them.
21. Apart from that, even PW.1 has never stated in his evidence as to whether they have maintained any statistics, documents or register of the properties which were earlier owned by the railways and that later they were subjected to theft and thereafter, those properties were seized from the custody of accused Nos.1 and 2. When it is specific from the evidence of PW.1 that some of the properties were not serviceable, some of the properties were usable, some of the properties were unusable and some of the properties were scrap and does not bear the mark of the railway department, in the absence of such material, it is incumbent that the burden is upon the railway department to establish that those properties were subject matter of the railway department and they had maintained statistics with regard to those properties to show to the Court that they were stolen. In 18 the absence of such material, it is very difficult for the Court to draw any conclusive inference that accused persons have actually stolen or they were in unlawful possession of railway properties.
22. Therefore from the above said facts and circumstances, I do not find any strong reasons to interfere with the judgment of acquittal recorded by the trial Court. Though, learned Counsel for respondent Nos.1 and 2 has relied upon many number of rulings, the facts of case itself is sufficient to hold that the prosecution has failed to prove the case against the accused persons. The appeal is devoid of merit and the same is liable to be dismissed. Accordingly dismissed.
Sd/-
JUDGE KSR